State v. Persinger
2014 Ohio 4125
Ohio Ct. App.2014Background
- In 2012, the Lorain County Grand Jury indicted David Persinger for one count of gross sexual imposition (R.C. 2907.05(A)(4)) based on an alleged incident with his eight-year-old step-granddaughter N.O.
- Persinger pled not guilty and the case proceeded to a jury trial; the jury convicted him and the court sentenced him to two years’ incarceration on April 11, 2013.
- The State presented N.O. and her mother; N.O. testified she was rubbed on her vaginal area with Persinger’s bare hand under her clothing while watching a movie in a dark room; diagrams were admitted as evidence.
- N.O. identified a diagram and a marked piece of paper (Exhibit 2) reflecting her disclosure; her mother testified to the November 2011 disclosure and reporting to the police.
- The defense called Kevin Smith (Persinger’s adult stepson) who testified he did not witness any inappropriate behavior; there were inconsistencies among witnesses but the jury weighed credibility.
- Persinger appealed raising two assignments of error challenging sufficiency of the evidence and whether the conviction was against the manifest weight; the Ninth District Court of Appeals affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to support conviction | State asserts evidence proves guilt beyond a reasonable doubt | Persinger asserts insufficient evidence on timing and purpose | Evidence sufficient; reasonable juror could find guilt beyond reasonable doubt |
| Conviction against the manifest weight of the evidence | State argues jury credibility and surrounding circumstances support verdict | Persinger argues inconsistencies show miscarriage of justice | Conviction not against the manifest weight; affirmed |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for reviewing sufficiency of evidence)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (sufficiency review framework (jury could find guilt beyond a reasonable doubt))
- State v. Edwards, 2013-Ohio-3068 (9th Dist. Lorain) (infer purpose of sexual arousal from circumstances of contact)
- State v. Antoline, 2003-Ohio-1130 (9th Dist. Lorain) (indirect evidence may establish intent/sexual purpose)
- State v. Cobb, 81 Ohio App.3d 179 (1991) (credibility and circumstantial evidence considerations)
- State v. Shue, 97 Ohio App.3d 459 (1994) (credibility and weight for witness testimony)
- State v. Cook, 2003-Ohio-727 (9th Dist. Summit) (jury credibility determinations within province of jury)